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John Bellinger Explains How To Make a UN Security Resolution Legally Binding

By on September 29, 2013 5:26 pm in International Law, Uncategorized

Many commentators, including a lot of international lawyers and scholars, have scrutinized the (as yet unnumbered) UN Security Council resolution worked out between the US and Russia and among the P-5 members of the Council regarding Syria and chemical weapons.  My quick take when the draft resolution was released on Thursday night is here at Opinio Juris; Jack Goldsmith comments at Lawfare and the Heritage Foundation’s Brett Schaefer and Baker Spring comment at National Review.  One important question on everyone’s minds, however, is whether, and in what sense, the resolution is a legally “binding” one, an order of the Security Council that under the Charter requires compliance – legally binding on Syria, the government and the warring parties there.  Is this merely a recommendation or is it a legally binding order of the Council?

Many readers will shrug and think this is not actually of any importance, being merely – so to speak – the flotsam and jetsam of UN legal processes floating on the currents of realist waters where matters are genuinely determined.  One can be a realist and still acknowledge, however, that the legal forms are not always and necessarily supervenient on international politics; they both reflect perceptions of legitimacy and help shape them, and they don’t have to be “determinative” in some strong sense to be relevant and important. Given that the law has some independent weight here, the forms of legal signaling matter.  Former State Department Legal Adviser John Bellinger explains what they are in this informative post at Lawfare:

There is no agreed form of words to make UNSCRs legally binding and, over the last sixty years, the Security Council has been inconsistent in its practice.  In recent years, many international law experts (including many government lawyers for the P-5 members of

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Greenpeace & Russia – an International Pussy Riot

By on September 29, 2013 3:01 pm in Environment, International Law, Russia

I blogged earlier about Russia’s illegal seizure of a Greenpeace vessel in international waters, and its laughable characterization of their acts as maritime piracy. The ship Arctic Sunrise had been boarded after an attempt to board or come alongside a Russian oil rig for some kind of non-violent protest. Subsequently, Vladimir Putin apparently poured cold water on potential piracy charges, leading some to think it would be a passing squall.

Instead, a Russian court has ordered all 30 crew members of varying nationalities jailed for two months pending an investigation. The ship also not been released, and the Netherlands, as the flag state, may file prompt release proceedings in the International Tribunal for the Law of the Sea.

The incident is a kind of international Pussy Riot. You may recall that Russia gave two-year jail sentences to members of that “feminist punk rock protest group” for some kind of raunchy, uninvited performance in a Russian Orthodox Church. (I am not entirely clear on the goals of the group or their methods.) While the sentence was widely decried, it does seem that Pussy Riot was engaged in a particularly provocative protest, that almost certainly took liberties with other people’s property. The legal action against them was not unreasonable – it was the nature and severity of the action that defied all proportion, and revealed a heavy-handed intolerance of protest.

Greenpeace is in a similar situation. They may have committed technical trespass, and certainly should not protest at finding themselves in court. But jail is another matter. There is one big difference: with Pussy Riot, Putin was bullying his own nationals, in his own capital. Now Russia is throwing its weight around against foreigners on a foreign-flagged vessel in international waters, which is not just thuggish, but a violation [...]

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Russia’s Piracy Charges Against Greenpeace Groundless and Illegal

By on September 25, 2013 5:06 am in International Law, Russia

Russia has seized a Dutch-flagged Greenpeace vessel in international waters, and plans to charge the crew with piracy. The environmentalists had attempted to unfurl a protest banner on a Russian Arctic oil platform. Russian commandos raided the Arctic Dawn and towed it to port.

The unusual piracy charges may well be inspired by a Ninth Circuit decision holding the Sea Shepherd’s “Whale Wars” against the Japanese whaling fleet could constitute piracy under the Alien Tort Statute, as OpinioJuris notes. I agreed with the Ninth Circuit in that case, against much protest. The question was whether piracy requires a motive to steal, and the Ninth Circuit held it does not. But the present matter is entirely different. Here it is Russia’s actions that violate international law.

The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).

First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).

Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.

Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. [...]

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The Biggest Democracy’s Bigger Death Penalty

By on September 13, 2013 6:42 am in Constitutional Law, Constitutional Theory, Criminal Law, Foreign and Religious Law in American Courts, International Law

India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) even when no death results. Thus India’s new law goes even beyond what was recently forbidden by the U.S. Supreme Court in Kennedy v. Louisiana.

The problem with determining constitutional law in reference to a “international opinion” and practice is that it keeps changing, and not in a constant direction. In Roper v. Louisiana, the Court famously found the practices of other countries relevant to the constitutionality of the death penalty. A few years later, in Kennedy v. Louisiana, the Court held the death penalty could not be constitutionally applied to child rapists (having given up execution for adult rape a while back).

In Roper, the Court found the countries that had executed juveniles in recent decades to be a motley mix of African and Islamic-law countries. But India is the world’s largest democracy, with Anglo-American legal traditions.

The more interesting point here is not about death penalty jurisprudence per se, but about the underlying assumptions about the reality and inevitability of human moral progress that underpins much of constitutional law’s “evolving consensus” discourse. Unlike in biology, norms and morales can evolve back.

[Of course, the death sentence is far from the end of the line for the Delhi rapists. There will be appeals, pardon requests, and the possibility of a last-minute stay, like the Indian Supreme Court gave this week to a father who beheaded his five daughters in an argument with his two wives.] [...]

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Does it Matter if US Intervention in Syria Violates the UN Charter?

By on September 8, 2013 6:38 pm in International Law, War and Armed Conflict

Most international law experts agree that a US military intervention in Syria would violate the United Nations charter, which forbids the use of force against another state except in self-defense or when authorized by a UN Security Council Resolution. In this case, the Assad regime has not attacked the United States, and there is no chance of a Security Council resolution authorizing intervention, because Russia and China would veto it.

Thus, US military intervention would indeed probably violate the Charter. I am skeptical of the case for intervention on other grounds. But if intervention were otherwise justified, US and its allies should not abandon it out of respect for the UN Charter. The Charter’s requirements are procedurally unjust, and there is no reason to believe that adhering to them has beneficial consequences.

I. Procedural Justice.

Sometimes, we have a moral obligation to follow just procedures even if they produce bad results in particular cases. But the Charter’s procedures for authorizing military intervention are deeply unjust. No matter how egregious a regime’s atrocities against its own citizens, it forbids outside intervention unless the intervention has the consent of two brutal authoritarian states: Russia and China. These governments have an obvious interest in curbing intervention against their client states, and also in shielding their own oppression from outside pressure. It is as if domestic law enforcement operations against organized crime required the prior approval of the two most powerful Mafia families. This is not to say that any intervention opposed by the Chinese or Russian governments is necessarily justified. Sometimes, as in the case of Syria, it may not be. But there is no good procedural reason to give these regimes an automatic veto over interventions being considered by liberal democracies.

If the process by which the Security Council makes [...]

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The U.N. Weighing in on the Zimmerman/Martin Investigation

By on September 6, 2013 11:33 am in International Law, Self-Defense

According to a United Nations press release,

A group of United Nations independent experts today called on the Government of the United State to finalize the ongoing review of the case involving the death of teenager Trayvon Martin, an African-American teenager who was shot in 2012 by a neighbourhood watchman in the state of Florida.

“We call upon the US Government to examine its laws that could have discriminatory impact on African Americans, and to ensure that such laws are in full compliance with the country’s international legal obligations and relevant standards,” said human rights expert Verene Shepherd, who currently heads the UN Working Group of Experts of People of African Descent.

The death of Trayvon Martin sparked a new debate about racial profiling in the United States after the unarmed black 17-year-old was shot and killed in Florida by George Zimmerman, a neighbourhood watchman. Mr. Zimmerman, who argued that he acted in self-defence and with justifiable use of deadly force, was found not guilty of all charges against him.

The US Department of Justice, the US Attorney’s Office for the Middle District of Florida and the Federal Bureau of Investigation are currently evaluating the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial, trying to establish potential civil rights charges linked to the case.

“The Trayvon Martin case has highlighted the importance of the need to review those existing laws and policies that can have a discriminatory effect on the basis of race, as African Americans become more vulnerable to such discrimination,” Ms. Shepherd said, recalling that the US has been party to the International Covenant on Civil and Political Rights since 1992, the International Convention on the Elimination of Racial Discrimination since 1994, and many other international human rights

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President Obama and Compliance with Domestic Versus International Law

By on September 2, 2013 8:45 am in International Law, Treaties, War and Armed Conflict

Last week I asked whether Presidents have a stronger obligation to obey domestic law than they do to obey international law, and suggested at least one argument for that view. In a very interesting pair of posts, Marty Lederman provides reason to think that President Obama may have this view as well. Treaties have legal status both as domestic law and international law, but they can have different statuses. Congressional authorization would trump the U.N. Charter as a matter of domestic law, even though an attack on Syria would probably still violate the Charter as a matter of international law. There’s much more detailed analysis in his posts. [...]

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Four Points on Syria

By on August 30, 2013 5:44 am in International Law, National Security, War and Armed Conflict

1. “Internal” Separation of Powers. Forget whether President Obama went through Congress, or the Security Council, or even our NATO friends. The real question is if the Administration wants to prevent atrocities in Syria, why turn to the Navy? Isn’t this the job of the Atrocities Prevention Board?

2. More Evidence of Evolution.

Barack Obama put the Bush era decisively behind him today in a speech to the United Nations in which he rejected unilateralism in favour of countries working together to tackle problems ranging from the Middle East to Iran and North Korea.

… At the heart of his speech, he promised to work with the UN in a way that Bush had not.
–From 2009.

And in 2008: “President-elect Barack Obama on Monday emphasized diplomacy, internationalism and alliances as he laid out a national security outlook far from President George W. Bush’s more unilateral approach..”

3. I do not understand the obsession with chemical weapons. It is a grisly way to kill people. So are machetes. I assume the only reasons the Syrian rebels aren’t using them (if they are not) are technical: they make the hearts and livers taste bad afterwards.

4. The most damaging news from Britain yesterday was that Assad had used such weapons 14 times. If true, it is hard to imagine the deterrent or punitive message a U.S. attack now could serve. First baker’s dozen of gassings come free? For weapons of mass destruction, 13 is a lucky number? [...]

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The EU’s Israeli Settlement Guidelines and International Law

By on July 24, 2013 1:19 pm in International Law, Israel

At The Times of Israel, I have a piece about the new European Union guidelines about funding to Israel, which provide that certain EU monies will not go to Israeli entities beyond the 1949 armistice lines, or that conduct activities there. In particular, I explain that while the guidelines cloak themselves with the mantle of international law, they have nothing to do with international law. Here is the intro:

These guidelines have led to numerous misconceptions from all sides. Concerned Israelis worry that it represents the beginning of an economic boycott. European officials claim international law and a concern for Palestinian self-determination, demand such action. None of this is right.

First, the guidelines do not establish an economic boycott. The rules do not restrict trade between Europe and Israel, or even Israeli companies in the West Bank. Rather, they specify how the EU as an organization chooses to spend its largesse – prizes, grants, and so forth. There is a big difference: restricting one’s gifts saves the EU money; implementing trade restriction would directly hurt its economy as well. In economic terms, a boycott is not the logical extension of a no-gift policy, but rather its direct opposite.

Nor is this about the Palestinians – the rules also bar funding of any organization connected to the Golan Heights. It is not clear which Syria the Europeans think Israel should surrender the entire Golan to, Assad or his Islamist foes, but this broad and unreasonable restriction has nothing to do with “the occupation.” It also has nothing to do with “settlements” in the West Bank; any Israeli institution with a presence in Eastern Jerusalem is blacklisted.

But most importantly, the EU policy is not about international law, which the guidelines repeatedly claim requires such action. Even if one thinks Israelis residing

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Human Rights Watch Director Privately Slurs Israel

By on May 22, 2013 4:30 pm in International Human Rights Law, International Law, Israel, War on Terror

The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.

Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.

Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)

The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”

He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.

I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments – now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.

Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and [...]

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The Media Push for IRS Action Against Pro-Israel Groups

By on May 14, 2013 3:47 pm in International Law, Israel, Taxes, Tea Party

In addition to the IRS’s particular interest in right-wing groups focussed on domestic policy, it has taken an unusual interest in right-wing pro-Israel groups. (I am friends with the leader of the group written about in the link.)

One major question raised by the IRS scandal is where these ideas came from. At least as far as Jewish groups go, the IRS scrutiny is not a fluke. That is not to suggest it was ordered by the White House – that is highly unlikely. At the same time, it certainly does not come out of the blue. The past several years have seen a concerted campaign in the mainstream liberal press to bring the IRS down upon certain pro-Israel groups, particularly those that support activities in the West Bank (or the Territories Formerly Occupied By Jordan).

For example, in 2009 David Ignatius had a story in the Washington Post, A Tax Break Fuels Middle East Friction. “Critics of Israeli settlements question why American taxpayers are supporting indirectly, through the exempt contributions, a process that the government condemns,” he wrote. The Guardian in 2009 also had a piece calling for IRS action.

In 2010, the New York Times continued the theme with a massive, expose-style front page story, which concluded that while such tax breaks do not seem to be exactly illegal, it creates :a surprising juxtaposition: As the American government seeks to end the four-decade Jewish settlement enterprise and foster a Palestinian state in the West Bank, the American Treasury helps sustain the settlements through tax breaks on donations to support them.” The article then tried to raise questions about whether such groups really satisfied U.S. tax-deductible requirements, suggesting the IRS should look into them. The activities the supported, the Times article suggests, were illegal and extremist.

Picking [...]

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Desire to Homeschool Not a Basis for Asylum

By on May 14, 2013 10:49 am in Education, International Law

This morning the U.S. Court of Appeals for the Sixth Circuit decided Romeike v. Holder.  Judge Sutton’s opinion for the court begins:

Uwe and Hannelore Romeike have five children, ages twelve, eleven, nine, seven and two, at least at the time this dispute began. Rather than send their children to the local public schools, they would prefer to teach them at home, largely for religious reasons. The powers that be refused to let them do so and prosecuted them for truancy when they disobeyed orders to return the children to school. Had the Romeikes lived in America at the time, they would have had a lot of legal authority to work with in countering the prosecution. See Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923).

But the Romeikes lived in Germany when this dispute began. When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not. The relevant legislation applies only to those who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). There is a difference between the persecution of a discrete group and the prosecution of those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in

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France’s Kiobel

By on May 2, 2013 3:19 pm in Alien Tort Statute, Corporations and Corporate Law, Global Governance/World Government, International Human Rights Law, International Law, Israel, Supreme Court

I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967.

The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s decision in Kiobel, as it also deals with suits for extraterritorial conduct of multinational corporations (though without the universal jurisdiction twist of Kiobel). It illustrates how the efforts of some American courts to implement international law norms through civil damages remedies is in fact a rather parochial exercise detached from international practice.

1) Most significantly, the Court found that international law does not create liability for corporations. This accords with the view of the Second Circuit in Kiobel – corporate liability was the issue on which cert in Kiobel had been granted, though the case was ultimately decided on extraterritorially grounds. Many who favored corporate liability argued that on this issue, courts should apply not international law, but rather federal common law. In future ATS litigation against companies with some U.S. nexus, the PLO v. Alstom decision will not make plaintiffs’ work easier.

2) The Versailles court also seemed to take a narrow view of aiding-and-abetting liability. The issue is hard to separate from the corporate liability issue, but the Court basically found that even if Israel’s conduct violated international law, the corporation does not incur liability for its involvement.

3) Ironically, the best examples of corporate liability under international law came from ATS cases (where courts had upheld such liability after having been assured of its existence outside ATS cases). Yet the French court brushed off precedents under the ATS by noting that they were merely applications of a “domestic statute” and [...]

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Landmark French Ruling on West Bank Construction and International Law

By on May 1, 2013 9:41 am in International Law, Israel

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last week that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the [...]

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Kiobel and Academic Fallability

By on April 17, 2013 12:54 pm in Alien Tort Statute, International Human Rights Law, International Law

Alongside the Health Care Act decision, Kiobel is an example of the professoriate failing to predict the issues that would be taken seriously by the Court both on substance and style. When the Second and Ninth Circuit began questioning “foreign cubed” suits a few years ago, the great majority of scholars dismissed such claims as entirely spurious. The conventional wisdom was very much on the side of universal jurisdiction over corporate human rights abuses. Indeed, such cases had been around for a few decades without much controversy over the universal jurisdiction aspect per se.

Most surprising about Kiobel is the Court’s unanimity. Everyone, including myself, predicted a decision closely divided on ideological lines. Yet ll nine justices seem entirely on board with ending multinational corporate suits. (While Justice Breyer’s concurrence would leave room for Filartiga-style suits where the defendant resides in the U.S., such cases against individuals have largely fallen out of favor with plaintiffs’ lawyers.) The misapprehension of the vote of course relates back to the merits. Many scholars thought the foreign cubed issue a conservative invention to roll back human rights litigation. That position is now hard to maintain. [...]

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